1724430 (Migration)

[2019] AATA 6411

1724430 (Migration) [2019] AATA 6411 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724430

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Penelope Hunter

DATE:18 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:

·PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

Statement made on 18 December 2019 at 12:35pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – health criteria – medical assessment – letters of support provided – possibility of discrimination and stigma – granting of visa unlikely to result in undue cost or prejudice – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.224, 186.234, Schedule 4 Public Interest Criterion (PIC) 4007, r 2.25A

CASES

Bui v MIMA (1999)85 FCR 134

Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 21 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 4 December 2015. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.186.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in public interest criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.

3. The applicant and [Ms A] appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. [Mr B] is the primary visa applicant for the grant of a Subclass 186 Employer Nomination Scheme visa.  [Ms A] is the wife of the applicant, and [Master C] and [Master D] are the children of the applicant. The applicant’s wife and children have been included in the visa application as members of his family unit.

6. The applicant and [Ms A] are citizens of Nepal, and arrived independently in Australia in 2007, on student visas. The applicant completed a Diploma and Certificate IV in Hospitality, and [Ms A] a Certificate III in Health Support Services in 2013. The applicant has been working for his [employer], , since [January] 2011 and he was sponsored in the position of [info deleted]. The applicant and [Ms A] were married in 2008, and [Master C] was born in Australia in [date]. [Master D] was also born in Australia in [date].

7. The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances.

8. As part of the assessment for the grant of the visa, all applicants were required to be assessed by the Medical Officer of the Commonwealth (MOC). The assessment by the MOC of [Ms A], dated 15 November 2016, found that she had the condition of [Medical Condition 1]. It was assessed that a hypothetical person with the condition in the form and severity of [Ms A] would be likely to require continued access to health care or community services including medical services and pharmaceuticals. It was assessed that the provision of these services was likely to result in a significant cost to the Australian community, and in the opinion of the MOC, the likely costs were assessed as [amount]. Based on this assessment, the MOC found that [Ms A], and consequently the applicant, did not meet the health requirement.

9. Submissions were made by the visa applicants to the Department in response to this opinion; these submissions included the provision of further medical information concerning [Ms A]. A further opinion was obtained from an MOC dated 4 May 2017. In this opinion, the MOC assessed that [Ms A] was a person with [Medical Condition 1]. It was assessed that a hypothetical person with the condition in the form and severity of [Ms A] would likely require ongoing medical review and [Medical Therapy 1].  It was assessed that the provision of these health care and/or community services were likely to result in a significant cost to the Australian community. Further, in the opinion of the MOC, the likely costs were assessed as [amount]. Based on this assessment, the MOC found that [Ms A] again did not meet the health requirement.

10. The delegate who considered the application found that [Ms A] did not satisfy the criteria in PIC 4007(1)(c) and was not satisfied that there were reasons to waive the criteria. Accordingly, the delegate found the criteria in cl.186.234(2) of Schedule 2 to the Regulations was not met by the applicant and refused the visa applications.

11. The visa applicants applied to the Tribunal for a review of the delegate’s decision on 9 October 2017. They included with the application a copy of the decision of the delegate.

12. On 24 September 2019, the Tribunal invited the visa applicants to obtain an updated MOC opinion. The applicants accepted this invitation and submitted further medical evidence in the form of a report by [Dr E] dated 8 October 2019. This was referred to the Review Medical Officer of the Commonwealth (RMOC). On 21 October 2019, the RMOC provided an opinion that [Ms A] had the condition of [Medical Condition 1]. It was considered that a hypothetical person with this condition would likely require health care services not limited to ongoing medical review and [Medical Therapy 1]. The RMOC further provided the opinion that the likely costs of treatment for a hypothetical person with the same condition were assessed as [amount]. The RMOC concluded that [Ms A] did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).

13. It was noted that the opinion of the RMOC dated 21 October 2019 did not contain reference to the report of [Dr E] dated 8 October 2019, and it was confirmed that the report was not considered. A new opinion was issued by the RMOC on 28 November 2019. The opinion set out that [Ms A] was a [age]-year-old person with the condition of [Medical Condition 1]. It was considered that a hypothetical person with this condition would likely require health care services not limited to ongoing medical review and [Medical Therapy 1]. The RMOC further provided the opinion that the likely costs of treatment for a hypothetical person with the same condition were assessed as [amount]. Again the RMOC concluded that [Ms A] did not meet the health requirement for the purposes of PIC 4007(c)(ii)(A).

    Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

14. Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.

15. Clause 4007(1)(c) requires the applicant to be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.

16. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.

17. As the applicant in this case has applied for a permanent visa, the exemption provision in PIC 4007(1B) does not apply.

18. In determining whether a person meets PIC 4007(1)(a), (b) or (c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of an MOC is required, the Tribunal must take it be correct: r.2.25A(3).

19. On the basis of the information before it, including the delegate’s decision records dated 21 September 2017, the medical evidence provided by the applicant, the opinions of the MOC and RMOC, and the applicant’s evidence at hearing, the Tribunal finds that the second named visa applicant, [Ms A], has the condition of  [Medical Condition 1].

    Is an MOC opinion required?

20. On the evidence before the Tribunal, an MOC opinion is required and has been obtained.  As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

21. There are four assessments in respect of the applicant made by an MOC or RMOC. The Tribunal must have regard to the most recent assessment and the outcome of this assessment, dated 28 November 2019, is that [Ms A] ‘does not meet the health requirement’. The RMOC estimated that the cost to the Australian community of the services identified in the assessment is likely to be [amount], consisting of [amount] in medical services and [amount] for pharmaceuticals. This is significantly less than the amounts estimated in the previous assessments of the MOC and is reflective of a change in Departmental Guidelines which have occurred since the visa application in assessment of the period over which the relevant costs are to be calculated.

22. The Tribunal is satisfied that in this case the RMOC opinion of 28 November 2019 has identified the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by [Ms A], [Medical Condition 1].  Further, the RMOC has applied statutory criteria by reference to a hypothetical person who suffers from that level or form of the condition. The Tribunal is satisfied therefore that the RMOC has applied the correct test in forming the opinion that [Ms A] does not meet the health requirement, specifically PIC 4007(1)(c)(ii)(A).

23. Accordingly, based on the opinion of the RMOC, [Ms A] does not satisfy PIC 4007(1)(c).

    Should the requirements of PIC 4007(1)(c) be waived?

24. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services may be waived if, among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either ‘undue cost’ to the Australian community or ‘undue prejudice’ to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).

25. The evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances: Bui v MIMA (1999) 85 FCR 134 (‘Bui’) at 47. Over and above the consideration of the likelihood that cost or prejudice will be ‘undue’, there is also the discretionary element of the ministerial waiver. And within that discretion, compassionate circumstances or compelling circumstances may be relevant: Bui at 47. Departmental policy guidance on the exercise of this discretion is contained in the Procedures Advice Manual (‘PAM3’). Broadly speaking, these relate to: family links in Australia and the impact on family members; occupational skills of the applicant or family members; assets or factors that may mitigate the costs or prejudice to access to care or services involved; available support from family or community groups; potential contribution to Australia by the applicant or family members; the immigration history of the applicant; other compelling and compassionate circumstances, including location of the applicant and family members; and any other relevant factors.

26. In anticipation of the Tribunal hearing, the applicants’ representative provided lengthy submissions dated 22 November 2019 and the following additional documents:

    i.Australian citizenship certificate and Australian passport of [Master C].

    ii.School photographs and sporting trophies for [Master C].

    iii.Payslip for the applicant.

    iv.Payslips for [Ms A].

    v.Rate notices and land valuation for the residential property at [Suburb 1] [in a state].

    vi.Commonwealth Bank internet banking account summary.

    vii.Evidence of car insurance for the motor vehicles of the applicants.

    viii.Superannuation details for the applicant and [Ms A] and relevant insurance coverages.

    ix.ATO letter for the applicant regarding income and tax receipt.

    x.Academic transcripts for the applicant and [Ms A].

    xi.Letters of support from [Ms F], [Person G], [Person H], [Mr I], [Mr J], - [Ms K].

27. At the hearing, further documentary evidence was submitted in the form of letters of support from the applicant’s employer, [Person L] and [Person M]. Additionally, the Tribunal received a statement of employment and salary for [Ms A] and evidence of her leave history.  Following the hearing, the Tribunal was provided with further evidence of land ownership of the applicant in Nepal, statements from the applicant’s Nepalese bank accounts, a letter of support from [Person N], and a wage slip for the brother of [Ms A], [Person G].

28. The Tribunal has taken into account all of the written and oral evidence submitted on behalf of the applicants, their representative’s submissions and all relevant medical and supporting documents, in its consideration of whether the requirements of PIC 4007(1)(c) should be waived. In doing so the Tribunal is aware that, on the face of it, the sum of [amount], while considerably less than the original assessment of the MOC, remains significant. However for the following reasons the Tribunal has concluded that the granting of the visa would be unlikely to result in ‘undue cost’ to the Australian community.

29. It is submitted on behalf of the applicants that they are a hardworking and fiscally responsible couple, who will easily mitigate the costs of [Ms A’s] health care through the contributions that they make through their employment and assets. The applicant and [Ms A] have long-term, ongoing employment. Income details have been submitted recording that in their most recent assessments for the 2018/2019 year they have a combined income of [amount] and contributed tax in the sum of [amount]. They own their residential home at [Suburb 1], which it is submitted contains equity of [amount]. Furthermore, savings have been accumulated as at 1 November 2019 with the Commonwealth Bank in the sum of [amount]. They also have two motor vehicles valued at [amount]. The applicant is also the owner of a house and land in Nepal from which they receive ongoing rental income. Both the applicant and [Ms A] have superannuation cover, which contains coverage for death or disability. The Tribunal accepts the submission that there has been an uplift in the applicant’s savings and equity since the delegate’s decision, that they have an improving superannuation position and relevant insurances in place. It is accepted that these tangibly demonstrate their ability to mitigate and contribute to the costs of [Ms A’s] health care.

30. Furthermore, the Tribunal is satisfied from the medical evidence submitted that [Ms A] is currently in good health and her medical condition is unlikely to impact on her ability to maintain her employment, or require the applicant to provide her with ongoing care, and impact on the ability of the visa applicants to support themselves financially. In her report of 8 October 2019, [Dr E] comments that [Ms A] is in good health, that she is highly adherent to her treatment, her [Medical Condition 1] is well controlled and that she has an excellent prognosis for her future health. Further, as [Ms A’s] [info deleted] is excellent, she is unlikely to ever experience any [Medical Condition 1]-related disease as long as she remains on treatment. Furthermore, the Tribunal notes that the patent for [Ms A’s] medication, [info deleted], is due to expire in [date], and [Dr E] has reported that at this time the costs for [Ms A’s] medication are anticipated to reduce significantly. Thus there is the probability of a further reduction in pharmaceutical costs. The Tribunal is also satisfied that in these circumstances the actual costs of her medication and treatment will likely be lower than the hypothetical person.

31. As to other compassionate and compelling circumstances, the eldest child of the applicants, [Master C], was granted Australian citizenship [in] June 2019. If the remaining applicants were refused visas, [Master C] would have to relocate to Nepal with the rest of his family. It is a country that he does not know, having lived his entire life in Australia, and he has limited cultural connection and only sporadic contact with family members. Evidence has been submitted that [Master C] is excelling at school and sport. The Tribunal has had regard to the submission that returning to Nepal would curtail his educational advancement as well as his access to health care. Submissions were also provided that it was in the best interests of [Master C], in accordance with the Convention of the Rights of the Child, which Australia ratified in 1990, for him not to be forced to return to Nepal. The Tribunal has further considered the evidence that as a child of a person living with [Medical Condition 1], [Master C] would also suffer from discrimination and stigma in Nepal.

32. The information before the Tribunal also indicates that to return to Nepal would have a detrimental effect on the long-term health of [Ms A].[information deleted].[1] The specialist treating [Ms A], [Dr E], also sets out in her report of 8 October 2019 that access to appropriate [Medical Therapy 1] treatment is problematic in Nepal, with supply intermittently unavailable and an inadequate health infrastructure. For [Ms A], [Dr E] opines, [info deleted]. 

    [1][source deleted].

33. In addition to the difficulties of access to regular treatment for [Ms A], evidence and submissions indicate that the entire family will face discrimination and stigma living with [Medical Condition 1]. In their 2018 report,[info deleted].[2] For fear of this stigma and discrimination, the applicants gave evidence at the Tribunal hearing that they had not disclosed [Ms A’s] condition to family in Nepal, even her parents. [Ms A] has only informed her sister living in Australia of her condition. She spoke openly and persuasively to the Tribunal regarding the shame and prejudice experienced by people suffering with [Medical Condition 1] in Nepal. [Ms A] was fearful not only of the reaction of her family and in‑laws but also the surrounding community response toward her remaining family in Nepal if details of her condition became known. If she returned she was concerned about the potential for her children to be excluded from school, that she would be excluded from family gatherings, [info deleted], and both herself and the applicant would be restricted in their employment. It is accepted that if the applicants return to live with their family in Nepal, that it is probable that they would find out about [Ms A’s] condition as she would have to explain why she was accessing regular treatment for her condition. It is also accepted that there are reports of children being excluded from school and individuals from society due to [Medical Condition 1] status.[3]

    [2] [source deleted].

    [3] ‘[source deleted].

1. In relation to the family ties of the applicants in Australia, as set out above, their son [Master C] has become an Australian citizen as [in] June 2019. The sister of [Ms A], [Ms F], is also an Australian citizen. This sister, aside from her health practitioners, is the only person with whom [Ms A] has shared details of her health condition, and she relies upon her considerably for ongoing support. Her sister has two boys with whom the applicants are also very close. [Ms A] also has a brother working in Australia. In addition, it is accepted by the Tribunal that the applicants have developed strong bonds with a number of Australian citizens and permanent residents. Letters of support have been provided by many family friends including [Person H] , [Mr I], [Person M], [Person L], [Mr J], - [Mr K], [a person], [another person] and [Person N]. The applicant has been employed by his sponsor for nine years. In the reference submitted to the Tribunal, the applicant is reported as a loyal and trustworthy employee. It is noted that the sponsor has not indicated that the applicant is essential to their business.

2. While the estimated costs to the Australian community for [Ms A’s] condition have considerably reduced, they are not insignificant. However the Tribunal takes into consideration that both [Ms A] and the applicant are in long-term employment, they have accrued considerable assets, including their home in [Suburb 1], which may go some way to mitigating the costs estimated by the RMOC. The provision of medical and pharmaceutical services to [Ms A], in the opinion of the RMOC, is not be likely to prejudice the access of an Australian citizen or permanent resident to health care services. The Tribunal considers that there will be an effect on the children, and in particular [Master C], who is now an Australian citizen, were he to have to return to Nepal and continue his education there with limited Nepalese language skills. However in particular the Tribunal is concerned that were the visa applicants to return to Nepal due to stigma, discrimination or unavailability that [Ms A] may not be able to access her regular medication. This could have an adverse impact on her remaining [Medical Condition 1] and on her health and well-being, and on that of her family in general. The Tribunal also is concerned with the stigma and discrimination that may be experienced by the applicant and the children as to her family members accessing employment and education. When all these matters are taken into account, the Tribunal is satisfied that the granting of the visa would be unlikely to result in an undue cost to the Australian community.

3. For these reasons, the Tribunal is satisfied that the granting of the visa to [Ms A] would be unlikely to result in undue cost or undue prejudice within the terms of PIC 4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

4. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

   DECISION

5. The Tribunal remits the application for the Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:

   ·PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

   Penelope Hunter

   
   

   Member

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4007(1)    The applicant:

   (aa)    if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

   (i)must undertake any medical assessment specified in the instrument; and

   (ii)must be assessed by the person specified in the instrument;

   unless a Medical Officer of the Commonwealth decides otherwise; and

   (ab)    must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

   (a)    is free from tuberculosis; and

   (b)    is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

   (c)    subject to subclause (2) — is free from a disease or condition in relation to which:

   (i)a person who has it would be likely to:

   (A)require health care or community services; or

   (B)meet the medical criteria for the provision of a community service;

   during the period described in subclause (1A); and

   (ii)the provision of the health care or community services would be likely to:

   (A)result in a significant cost to the Australian community in the areas of health care and community services; or

   (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

   regardless of whether the health care or community services will actually be used in connection with the applicant; and

   (d)    if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

   (1A)For subparagraph (1)(c)(i), the period is:

   (a)    for an application for a permanent visa — the period commencing when the application is made; or

   (b)    for an application for a temporary visa:

   (i)the period for which the Minister intends to grant the visa; or

   (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

   (1B)If:

   (a)    the applicant applies for a temporary visa; and

   (b)    the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);

   the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

   (2)The Minister may waive the requirements of paragraph (1)(c) if.

   (a)    the applicant satisfies all other criteria for the grant of the visa applied for; and

   (b)    the Minister is satisfied that the granting of the visa would be unlikely to result in:

   (i)undue cost to the Australian community; or

   (ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.